The California Supreme Court will hear oral arguments this
month in a case that pits the public’s right to access government records against
the privacy rights of bar exam test-takers.

The case stems from a UCLA law professor’s request for data
on every person who applied to take the bar exam from 1972 to 2007, including their
race, academic record and bar exam scores.

Professor Richard Sander wants to use the data to test his theory
that affirmative action undermines the ability of minority students to succeed
at elite schools, leading to lower bar exam passage rates among black and
Latino bar applicants.

The State Bar declined to release the data in 2007, citing
privacy concerns, and Sander filed suit.

Among the legal questions in the case is whether the bar
exam information is subject to public disclosure. The trial court found that
the common law right of access does not authorize public access to the bar exam
data, but the 1st District Court of Appeal reversed, finding there was a legal
basis for disclosure and ordering the lower court to reconsider the request.

On appeal to the California Supreme Court, the State Bar
argues that exam scores are not public information, noting that even successful
applicants don’t get to see their own scores. The State Bar said applicants are
promised confidentiality when they voluntarily submit the information. The bar
releases statistics
on bar passage rates by law school and whether the applicant was a
first-time or repeat test-taker.

Sander, joined by the First Amendment Coalition, maintains that
there is a right of public access to admissions records under the California
Constitution and common law. He argues that privacy concerns can be resolved by
manipulating the data before it’s released to protect the identity of
individual test-takers.

The case has drawn a number of friend-of-the-court briefs,
with media outlets pressing for disclosure and bar applicants and local bar
associations urging confidentiality.

The arguments are scheduled for Oct. 9 at the court’s
special session at the University of California Berkeley School of Law and a
decision is due by early January.

The briefs in the case, Sander v. State Bar of California,
S194951, are available online.